Smt. Mamta Devi And 5 Ors. vs Sanjay Singh Yadav
2013 Latest Caselaw 2363 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 35
 

 

 
	First Appeal From Order  (defective) No.710 of 2013
 
Smt. Mamta Devi & others            				  .........Appellants. 
 
					Vs. 
 
Sanjay Singh Yadav 				                    .......Respondent.
 
*******
 

 
Hon'ble Rakesh Tiwari, J.

Hon'ble Karuna Nand Bajpayee, J.

(By Justice Rakesh Tiwari)

We have heard Sri Sudhakar Yadav, counsel for the appellants on the question of delay condonation.

This FAFO is reported to be beyond time by 42 days. Having gone through the affidavit filed in support of delay condonation application, we are of the view that the cause shown for delay in filing appeal is sufficient. Delay is condoned. Delay condonation application is, accordingly, allowed.

Heard learned counsel for the appellants on merits of the case.

This FAFO has been filed challenging the validity and correctness of the judgment and order dated 23.12.2012 passed by Civil Judge (S.D.), Shahjahanpur in Suit No. 45 of 2012: Sanjay Singh Yadav Vs. Smt. Mamta Devi.

Brief facts of the case are that late Babu Ram Yadav who was working as Village Development Officer in Social Welfare Department, Shahjahanpur, died on 13.08.2010; that his first marriage was solemnized with Smt. Sudha. He had one son namely Sanjai Singh Yadav from the aforesaid wedlock. After death of his first wife, Babu Ram Yadav solemnized his second marriage with Smt. Mamta Devi, appellant no. 1 in the present appeal. From this wedlock five children were born who have been arrayed as respondents no. 2 to 6 in this appeal. Babu Ram Yadav died during service period on 13.8.2010 leaving behind him Sanjai Singh Yadav (son) from first wedlock, Smt. Mamta Devi his second wife and five sons and daughters i.e. respondents no. 2 to 6 as stated above.

Respondent-Sanjai Singh Yadav filed civil suit no. 45 of 2012: Sanjai Singh Yadav Vs. Mamta Devi & others before Civil Judge (S.D.), Shahjahanpur on 06.10.2012 regarding issuance of succession certificate claiming his right on the basis of WILL dated 9.7.2010. Objections were filed by appellant no. 1 on her own behalf and her daughter and sons. By the impugned judgment dated 23.12.2012, 1/6th part of all retiral benefits of late Babu Ram Yadav were directed to be paid to his minor children namely Swati Devi (16 years), Vijai Yadav (14 years), Sonam (13 years), Bhanu Singh (11 years) and Nirbhai (09 years) under the guardianship of their mother Smt. Mamta Devi, and 1/6 remaining part was directed to be paid to Sanjai Singh Yadav.

The judgment dated 23.12.2012 was challenged by the appellant in Civil Misc. Writ Petition no. 15171 of 2013. The writ petition was dismissed on 22.3.2013 by this Court on the ground of alternative remedy with liberty to file appeal. Consequently, the appellants have filed this appeal.

The only contention of learned counsel for the appellants is that forged WILL is the basis of claim by Sanjai Singh Yadav and the court below has passed the order impugned without hearing the appellants. It is argued that Babu Ram Yadav husband of appellant no. 1 had mentioned her name in his service book as nominee, but the court below has not considered this fact while passing the impugned order and in this view of the matter, the order impugned is liable to be set aside.

We have perused the impugned award as well as claim set up by Sanjai Singh Yadav son of late Babu Ram. It appears from the WILL that Babu Ram father of Sanjai Singh Yadav had built his property in his life time. It also appears from the WILL that appellant no. 1, his second wife, pressurising her husband on behest of her father and brother purchased a land and constructed the shops on it which was got transferred in her name subsequently.

It is averred in the WILL that Mamta Devi, appellant no. 1, the second wife of Babu Ram Yadav was not looking after her step son Sanjai Singh Yadav who was born from wedlock of Babu Ram Yadav with his first wife and as such he had given his 1/3rd share i.e. part of house to live in from his ancestral property. As regards his agricultural land, retiral benefits and other properties are concerned, he has distributed the same to Sanjai Singh Yadav son from his first wife and to all the sons and daughters of his second wife equally to 1/6th share of each in it. Relevant portion of WILL is reproduced below:

"eSa ckcwjke iq= Lo0 fcgkjh yky] tkfr ;kno] fuoklh eksgYyk cax'kku dLck ehjkuiqj dVjk Fkkuk dVjk tuin 'kkgtgkaiqj @mRrj izns'[email protected] dk gWw o lekt dY;k.k foHkkx enukiqj @'[email protected] esa xzke fodkl vf/kdkjh ds in ij dk;Zjr gWwA

;g fd eq> efdj dh vk;q yxHkx 50 @[email protected] o"kZ dh gks pqdh gS o Mk;fcMht ds jksx ls xzflr gWw ftlds dkj.k vDlj chekj jgrk gWw rFkk thou dk dksbZ Hkjkslk ugh gS dc esjs izk.k fudy tk;sA vr% eSa pkgrk gWw fd vius ejus ls igys viuh lEifRr o lfoZl o mlls feyus okys QaM o vU; ykHkksa dk mfpr izcU/k dj nwWA esjh izFke iRuh Lo0 Jherh lq/kk ;kno muls mRiUu ,d ek= iq= lat; flag ;kno dh nq[kHkky gsrq esjs ifjokjhtu ls nwljk fookg Jherh eerk ;kno ls djok fn;k tks fd vHkh thfor o LoLFk gSA muls 3 iq= @fot;] Hkkuw o fuHkZ;@ o 2 iqf=;ksa @d0 Lokfr o dq0 [email protected] gS tks vHkh ukckfyx gSA esjh f}rh; iRuh dk yxko vius firk o HkkbZ;ksa ls T;knk gSA ftlds dkj.k gh esjh f}rh; iRuh esjk o esjs izFke iRuh ds ,d ek= iq= dk tjk Hkh [;ky ugh djrh gS o ?kj ij dyg djrh jgrh gSA esjh f}rh; iRuh us vius firk o HkkbZ;ksa ls eq> eqfdj ij tcjnLrh ncko cuokdj esjs }kjk tehu [kjhn dj cuok;s x;s edku o mlesa fufeZr nqdkuksa dk tcjnLrh ncko cukdj vius gd esa cSukek djok fy;k mudh bl gjdr ls eSa ijs'ku o gSjku gWw vkSj vc eq>s fo'okl gks pyk gS fd esjs ejus ds ckn ;g yksx esjh izFke iRuh ls mRiUu ,d ek= iq= lat; flag ;kno dks dqN ugh nsxs mlds Hkfo"; dks ysdj cgqr O;fFkr gWw eSa pkgrk gWw fd mlds fy;s dqN d:A vr% eSa [kwc lksp le>dj fcuk fdlh ncko ds viuh bPNk ls ;g olh;r djrk gWw o fy[k nsrk gWw fd esjk iSr`d edku ftlesa esjk [email protected] @,d cVk [email protected] Hkkx gS og fgLlk vius izFke iRuh ds iq= lat; flag ;kno dks nsrk gWw o tc rd eSa thfor jgWwxk viuh lfoZl dk miHkksx d:xkA esjs ejus ds ckn esjh izFke iRuh dk iq= lat; flag ;kno esjh lfoZl ikus dk vf/kdkjh gksxkA eq> eqfdj dh e`R;q mijkUr feyus okys lfoZl ds QUM o vU; ykHkksa ij o esjh iSr`d d`f"k Hkwfe ij esjh izFke iRuh ds iq= lat; flag ;kno o f}rh; iRuh ds iq=ksa o iqf=;ksa dk leku vf/kdkj gksxkA blesa fdlh dk dksbZ ,srjkt ugh gksxk] ;fn dksbZ ,srjkt izdV Hkh djrk gS rks og bl olh;r ds lEeq[k >wBk gksxkA ;g esjh izFke o vfUre olh;r gSA vr% ;g olh;r fy[k nh rkfd oDr t:jr iM+us ij dke vkosA"

As regards the impugned order of the court below is concerned, after service of notice on the respondents concerned, the same was passed as under:

vkns'k

1- oknh lat; flag ;kno dk izkFkZuk i= 3[k Lohdkj fd;k tkrk gSA

2- e`rd Lo0 Jh ckcwjke ;kno }kjk e`R;q mijkUr ftyk fodl vf/kdkjh @[email protected] 'kkgtgkaiqj e`R;q mijkUr ns; lsokxr vo'ks"k fnukad 01-08-2010 ls 12-08-2010 rd dk osru 6]698-00 :0 e; c;kt lkekU; Hkfo"; fuoZgu fuf/k vadu 4]26]224-00 :0 e; C;kt ,oa deZpkjh lkewfgd chek vadu 1]00][email protected]& :0 e; C;kt ,oa vodk'k udnhdj.k vadu 1]71]390-00 :0 e; C;kt ,oa ikfjokfjd isa'ku @[email protected] fnukad 13-08-10 ls :0 3]545-00 :0 + eagxkbZ HkRrk ,oa is'kau jkf'kdj.k 1]24]330-00 :0 e; C;kt ,oa xzsP;qVh vadu 4]37][email protected]& :0 e; C;kt dh ckor ikap vO;Ld cPps dq0 Lokrh nsoh mez 16 o"kZ] fot; ;kno mez 14 o"kZ] dq0 lksue mez 13 o"kZ] Hkkuq flag mez 11 o"kZ] fuHkZ; mez 09 o"kZ izR;sd dk [email protected] o [email protected] va'k mus o;Ld gksus rd mudh ekrk Jherh eerk nsoh ds laj{k.k esa ikapksa cPpksa dk va'k vyx&2 lkokf/k tek ;kstuk [kkrk esa tek djrs gq;s 'ks"k [email protected] Hkkx /kujkf'k oknh lat; flag ;kno ds i{k esa i;kZIr U;k; 'kqYd vnk djus ds mijkUr fu;ekulkj mRrjkf/kdkj izek.k i= tkjh fd;k tkosA"

Since the appellant-respondent had appeared before the court below and had filed their objections and had contested the case, the contention of learned counsel for the appellant that appellant was not heard is incorrect. The WILL executed by Babu Ram appears to be balanced one as second wife has transferred a house and shops in his life time by her husband from which income she can survive with her family. It appears that in order to balance the WILL, he gave Sanjai Singh Yadav his 1/3rd share in the ancestral house.

In the circumstances, it seems that maker of WILL deed Sri Babu Ram Yadav had rightly distributed his property not only in favour of Sanjai Singh Yadav, but everyone and had taken care of each and every members of his family. Had the WILL been forged then certainly Sanjai Singh Yadav had taken whole of the property or share which is not in the present case.

For all the reasons stated above, we are of the considered view that the appeal is liable to be dismissed and is, accordingly, dismissed. No order as to costs.

Dated:20.5.2013

RCT/-